FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 46015/99
by Jerzy TARTAK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 25 August 2005 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 6 May 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the Court’s partial decision of 23 April 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Jerzy Tartak, is a Polish national, who was born in 1944 and lives in Białystok, Poland. He is represented before the Court by Mr Marek Mazurkiewicz, a lawyer practising in Warsaw. The respondent Government are represented by their Agent, Mr Jakub Woląsiewicz.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Until 1991 the applicant was employed as a journalist in the Białystok Branch of the Publishing Co-operative “Prasa-Książka-Ruch” (“PKR”). Apparently, on 7 January 1991 the Białystok branch of PKR was acquired by the Labor Co-operative “Kurier Podlaski” (the Co-operative”), and accordingly, all its employees became ex lege the employees of the Co‑operative.
In 1996 the applicant brought a compensation claim against the Co‑operative before the Białystok Regional Court. He submitted that since 1993 his salary had been reduced in comparison to his salary in the Białystok Branch of PKR and that it was contrary to the provisions of the 1989 Collective Agreement which had been in force in PKR. The Co‑operative became a legal successor of the Białystok Branch and therefore the rules of the Collective Agreement should have still applied to the PKR former employees.
The Co-operative contended that the operation of the Collective Agreement had been suspended by virtue of a resolution of the Board of 6 August 1993 and therefore the only legal basis for the applicant’s salary was an employment contract he had concluded with the Co-operative on 1 May 1993.
On 18 November 1995 the Białystok District Court found that it lacked jurisdiction to deal with the case and transmitted it to the Białystok Regional Court.
At a hearing held on 17 January 1997 the Białystok Regional Court heard submissions of both parties. It further adjourned the hearing, having obliged the parties to submit further evidence.
The next hearing was held on 27 February 1997. Further evidence was taken. Subsequently, the court invited the parties to submit further evidence, if they wished to do so. The parties declined to avail themselves of this opportunity. The court further decided ex officio to request the defendant co-operative to submit, within a three days time-limit, information concerning its financial standing throughout the period from 1992 until 1996 and to admit this evidence after the closure of the hearing. The court apparently relied on Article 224 § 2 of the Code of Civil Procedure.
The defendant company submitted this information to the court on 5 March 1997.
On 6 March 1997, at a public session held at 8.45 a.m., the Białystok Regional Court dismissed the applicant’s claim, considering that by signing the employment agreement of 1993 he had accepted new conditions of employment notwithstanding that they differed from those provided for in the 1989 Collective Agreement. These new conditions of employment, provided for by individual employment contracts, replaced those stipulated in the earlier Collective Agreement and the applicant was therefore bound by this new agreement. The court referred to the parties’ submissions and to the documents contained in the applicant’s employment file, including his acceptance of the 1993 employment agreement.
The applicant appealed against the first-instance judgment. He submitted, inter alia, a nullity plea arguing that after the second and last hearing before the first-instance had closed, the court had requested the defendant to submit certain evidence. This evidence concerned the defendant’s financial standing in the years 1992-1996. The applicant complained that he had not been given an opportunity to have access to these documents and to comment thereon. He further argued that these documents were relevant for the legal assessment of his claim as they showed that the defendant’s financial situation during the period concerned was not bad.
On 28 May 1997 the Białystok Court of Appeal upheld the contested judgment. It stated that the applicant’s arguments in support of the nullity plea had not been developed clearly enough (“niesprecyzowane bliżej zarzuty nieważności postępowania”).
The applicant lodged a cassation appeal with the Supreme Court. He submitted, inter alia, that the proceedings should be declared null and void and the judgment quashed. He relied in this respect on the fact that on 28 February 1997 the Białystok Regional Court had requested the defendant co-operative to submit its annual balance sheets for years 1992-1996 after the final hearing had been closed. In consequence, the applicant had been denied the opportunity to familiarise himself with all the evidence available to the court and to comment thereon.
On 25 November 1997 the Supreme Court dismissed the applicant’s cassation appeal. The court referred to the grounds of the cassation appeal submitted by the applicant, but observed that the appeal had failed to indicate which procedural provisions had been breached by the appellate court.
B. Relevant domestic law
1.The taking of evidence in civil proceedings
Pursuant to Article 224 § 1 of the Code of Civil Procedure, the presiding judge shall close the hearing if he or she considers that the facts relevant for the decision on the merits have been sufficiently established.
Under Article 224 § 2, it is permissible for the court to close the hearing and take certain evidence afterwards, provided that this evidence is to be taken by a designated judge or a designated court when particular evidence is available in files kept by public authorities, or when it is necessary to obtain from public authorities clarifications relevant for the case.
2.Nullity pleas in appellate proceedings
Pursuant to Article 379 § 5 of the Code of Civil Procedure, a nullity plea can be made, inter alia, on the ground that the party to the proceedings has been deprived of the possibility of defending his or her rights.
Pursuant to Article 378 § 1 of the Code, the appellate court, when examining an appeal, shall limit its consideration to the grounds relied on by the appellant; however, it shall examine ex officio whether the proceedings have been tainted with such procedural shortcomings as would justify declaring them null and void.
3.Grounds for cassation appeal
A party to civil proceedings can lodge a cassation appeal with the Supreme Court against a final judicial decision of a second-instance court which has terminated the proceedings.
Article 393¹ of the Code of Civil Procedure provides:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law by its erroneous interpretation or wrongful application,
2) a breach of procedural provisions, if that shortcoming could significantly affect the outcome of the case.”
Pursuant to Article 393 ¹³ the Supreme Court, having allowed a cassation appeal, may quash the challenged judgment in its entirety or in part and remit the case for re-examination.
COMPLAINT
The applicant complains under Article 6 of the Convention that the proceedings in his case were unfair in that the Białystok Regional Court requested the opposing party to submit certain documents after the final hearing took place. The applicant was never offered a possibility of familiarising himself with this evidence and preparing his comments on it.
THE LAW
The applicant complains under Article 6 of the Convention that the proceedings in his case were unfair in that he was never offered a possibility of familiarising himself with certain documents submitted by his opponent.
Article 6 in its relevant part reads:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Government first submit that the Białystok Regional Court, when deciding to close the hearing and to take the evidence from the annual balance sheets of the defendant company, acted in conformity with applicable law. Article 224 § 2 of the Code of Civil Procedure expressly allows for such a procedural decision.
The Government further submit that the parties were aware of the court’s decision to close the hearings and to take the evidence afterwards. The court decided to do so during the hearing held on 27 February 1997 and duly informed the parties. This decision was also recorded in the minutes of the hearing.
The Government aver that the evidence concerned was submitted to the court on 5 March 1997. Consequently, the applicant had an opportunity to familiarise himself with these documents, by consulting the case-file, and to comment thereon.
The Government finally argue that in the written grounds of its judgment of 6 March 1997 the Regional Court did not refer to these documents at all. All circumstances of the case, relevant for the decision on the merits, had been established on the basis of the evidence which had been taken during the hearings in the presence of both parties to the proceedings. They conclude that the proceedings were fully adversarial and that the requirements of Article 6 § 1 of the Convention were satisfied.
The applicant first argues that the decision to take evidence out of the hearing was in breach of the provisions of domestic law. It is true that under Article 224 § 2 it is permissible for the court to close the hearing and take certain evidence afterwards. However, it only concerns situations when this evidence is to be taken by a designated judge or a designated court and when certain evidence is available in files kept by public authorities, or when it is necessary to obtain certain clarifications relevant for the case from public authorities. The evidence concerned in the present case did not belong to any of these categories. In these circumstances, the court should have reopened the hearing so as to give to the applicant a possibility to have access to these documents and to submit his comments.
The applicant further argues that this procedural shortcoming amounted to a ground of nullity of the proceedings, as provided for by Article 379 § 5 of the Code of Civil Procedure. The applicant, in his appeal and in his further cassation appeal to the Supreme Court, complained that he had not been given an opportunity to have access to the documents submitted after the hearing and to comment thereon. He also argued that these documents were relevant for the assessment of his claim. While it is true that the applicant did not expressly invoke 379 § 5 of the CCP as a ground of nullity, it was clear that his complaint amounted to a nullity plea. This plea should have been taken into consideration by the appellate courts of their own motion.
The applicant further argues that the fact that he was aware of the court’s decision to take the evidence outside a hearing is of no significance for the assessment of the fairness of the proceedings.
The applicant further contests the Government’s assertion that he could have had access to the documents concerned. As the judgment was given on 6 March 1997, the applicant was not served with a copy of the documents concerned, could not have been aware of their contents and could not comment on them.
The applicant emphasises that it is irrelevant for the assessment of the case whether the first-instance court referred to this evidence in its judgment. These documents were submitted with a view to influencing the court’s decision and it is only reasonable to believe that if a party is deprived of a possibility to comment on the evidence submitted by the other party, as was the case of the applicant, such material did influence the outcome of the case.
The Court first reiterates that the principle of equality of arms, one of the elements of the broader concept of fair trial, requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (Nideröst-Huber v. Switzerland, judgment of 18 February 1997, Reports of Judgments and Decisions 1997-I, p. 107, § 23; Morel v. France, no. 34130/96, § 27, 6 June 2000, 2000-VI). The right to adversarial proceedings means in principle the opportunity for the parties to have knowledge of and to comment on all the evidence adduced or observations filed with a view to influencing the court’s decision (K.S. v. Finland, no. 29346/95, § 21, 31 May 2001).
The Court also recalls that the requirement of equality of arms applies in principle to civil cases as well as to criminal cases. However, the requirements inherent in the concept of “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge (see, for example, Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, §§ 32-33).
The Court first observes that at the hearing held on 17 January 1997 the court heard submissions of both parties and invited them to submit further evidence. Subsequently, at the hearing held on 27 February 1997 the Białystok Regional Court took further evidence. It also invited the parties to submit other evidence, if they wished to do so. However, the applicant declined to avail himself of this opportunity. In these circumstances the Court is of the view that the applicant had a reasonable opportunity to submit such evidence as he thought relevant to the legal assessment of his claim.
The Court observes that the applicant was aware of the fact that the defendant co-operative would submit new evidence to the court as this decision was taken during the hearing held on 27 February 1997. The applicant was aware of it and did not challenge this decision at that time.
The Court further observes that the first-instance court did not refer to the impugned documents in its judgment of 6 March 1997. The only question which was examined by that court was the determination of the legal basis governing the applicant’s employment contract. In this context, the court examined whether the applicant could successfully rely on the provisions of the 1989 Collective Agreement to guarantee him a higher salary. The court, having examined the applicant’s personal file and having regard to the parties’ submissions, found that they were bound by the subsequent 1993 Collective Agreement, providing for conditions different from those laid down in this earlier agreement. The question of the employer’s financial standing from 1992 to 1996, insofar as it could be established on the basis of the documents submitted on 5 March 1997, was irrelevant to the case under examination because the company’s ability to pay higher salaries was not in issue in the proceedings.
The Court also observes that in his appeal against the first-instance judgment the applicant invoked the documents submitted to the court on 5 March 1997. However, the appellate court dismissed his nullity plea as being unclear.
The Court reiterates that its task under the Convention is to ascertain whether the proceedings as a whole were fair (see, among other authorities, García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999-I). In the circumstances of the case, having regard, in particular, to the fact that the applicant had ample opportunity to argue his case before the court and to submit all evidence he thought relevant, the Court is of the view that the proceedings, seen as a whole, complied with the requirements of Article 6 § 1 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy